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Abolition of Death Sentence 101. It is only the legislature which can abolish the death penalty and not the courts. As long as the death penalty exists in the statute book it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by the judiciary. It is not for the judiciary to repeal or amend the law, as that is in the domain of the legislature vide Common Cause vs. Union of

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 1

 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 1969 OF 2009

Ajitsingh Harnamsingh Gujral .. Appellant 

 -versus-

State of Maharashtra .. Respondent

 J U D G M E N T

MARKANDEY KATJU, J.

 "Qareeb hai yaaron roz-e-

 mahshar,

 Chupega kushton ka khoon 

 kyonkar,

 Jo chup rahegi zubaan-e-

 khanjar,

 Lahu pukaaregaa aasteen 

 ka"

 - Ameer Minai

 2

1. Heard Shri Jaspal Singh, learned senior counsel for the 

appellant and learned counsel for the State of Maharashtra for the 

respondent. This is an appeal by special leave against the 

judgment of the Bombay High Court dated 26.6.2006, which has 

confirmed the death sentence of the appellant given by the learned 

Sessions Judge dated 19.3.2005.

2. The accused is a businessman. He was a married man having 

one son and two daughters. He was married with the deceased 

Kanwaljeet Kaur about 25 to 27 years prior to the incident dated 

10.4.2003. He had a son Amandeep Singh aged about 20 years 

and two daughters viz. Neeti and Taniya, aged about 22 years and 

13 years respectively. All of them were allegedly killed by the 

accused in the early hours of the morning of 10.4.2003 by pouring 

petrol on their persons and setting them on fire.

3. Earlier the accused had lived at Ludhiana. However, it 

appears that he suffered business losses there, and so he shifted to 

 3

Mumbai with his family and started residing in Jyotsna Building. 

Initially he was doing business of catering in the same building, 

and his son Amandeepsingh was assisting him in that business. 

After some time, the accused shifted his catering business to 

Kamlesh building which is situated in the same locality of Shere-

Punjab colony, Andheri. There were several employees of the 

accused to assist him in the business of catering. Those servants 

used to sleep in front of his flat in the verandah. The accused was 

having a Maruti Zen Car and his son was having a motorcycle.

4. According to the prosecution, the accused was a hot 

tempered man. He was like a dictator in the family, and dominated 

his wife and children in the family, on account of which there was 

resentment in his family members. Further, it is alleged by the 

prosecution that the accused was ill-treating his wife and twice he 

had assaulted her with a leather belt.

5. On the night of 9.4.2003 the accused and all his family 

members were in their flat. All the servants were sleeping outside. 

 4

The accused was seen coming to the flat between the night of 

9.4.2003 and 10.4.2003 at about midnight. There were two bed 

rooms in the flat of the accused. Ordinarily the accused and his 

wife used to sleep in one bed room while the children slept in 

another. There was a quarrel on the night of 9.4.2003 between the 

accused and his wife after he had returned back from work. 

Between 4.00 and 4.30 a.m. some of the servants heard a big noise 

of something bursting followed by or preceded by someone crying 

in pain. The servants woke up and found that the flat of the 

accused was on fire. There was utter confusion and chaos. 

Somebody phoned to the fire brigade and a fire engine came. The 

police also followed. The door of the flat was open, and it was 

smoky inside. Strong smell of petrol was coming from there. The 

fire was extinguished, and then only could they enter the bed room, 

where the four bodies of the members of the family of the accused 

viz. his wife, his son and two daughters were found burnt, and they 

were dead. The police made an inquiry from the servants and then 

a report of murder was lodged by PSI Prakash Shivram Kamble. 

 5

The investigation soon started and inquest Panchanama, spot 

panchanama etc. were made. The bodies were then sent for post 

mortem.

6. In their preliminary inquiry, the police found that the Maruti 

Zen car of the accused was not there and the accused was also not 

there. Attempts were made to trace and search him, and ultimately 

the accused was arrested on or near Kishangadh, Madanganj in 

Ajmer District in Rajasthan on 14.4.2003. The car which the 

accused was driving was seized, and so also an amount of 

Rs.7,68,080/- in cash along with about 24 silver coins, 7 safari 

dresses and 7 turbans. A police officer was deputed from Mumbai 

and the accused was brought to Mumbai.

7. The statement of the accused was recorded under Section 27 

of the Evidence Act and a red bucket from which he had allegedly 

thrown petrol on the persons of all the four members of his family 

was recovered at his instance.

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8. All the material recovered by the police from the spot viz. 

burned clothes, petrol can, bucket, broken glass pieces, etc. were 

sent to the Chemical Analyzer.

9. In the inquest, it was found that the son of the accused, 

Amandeepsingh had certain injuries on his body. Because of fire, 

the glass pieces were shattered in the room and one piece was 

removed from one of the injuries on the stomach of the son. An 

expert electrician was called, and he inspected the premises and 

opined that there was no short circuit. The Air-Conditioner's 

compressor was intact. Post mortem of all the bodies was 

conducted and it was found that all the four persons died as a result 

of burning.

10. During the course of investigation the statements of relatives 

of the deceased, neighbours, and the servants of the accused were 

recorded. All the seized property was sent to the Chemical 

Analyzer for opinion. Thereafter the charge sheet was filed. 

Separate charges under Section 302 of the Indian Penal Code was 

 7

framed against the accused for committing murders of his wife 

Kanwaljeet Kaur, his son Amandeepsingh and two daughters Neeti 

and Taniya. The accused pleaded not guilty to the charges. 

Thereafter, the Additional Sessions Judge, recorded the evidence 

of the prosecution witnesses. In all 19 witnesses were examined as 

the prosecution witnesses. Thereafter the statement of the accused 

under Section 313 of the Criminal Procedure Code was recorded. 

The accused expressed his desire to examine witnesses in defence 

of his plea of alibi and, accordingly four witnesses were examined 

by the accused. The Additional Sessions Judge heard the 

arguments and also took on record the written arguments submitted 

by the advocate for the accused and, ultimately came to the 

conclusion that the prosecution had proved its case beyond 

reasonable doubt that the accused committed murders of all four 

members of his family. So far as sentence was concerned, the 

Additional Sessions Judge came to the conclusion, after 

considering the cases cited before him by both the sides, that this 

was a rarest of the rare case and imposed penalty of death upon the 

 8

accused.

11. Two question arise before us (a) is the appellant guilty of 

murder? (b) if he is, should he be given the death sentence? We 

shall deal with these separately.

12. The appellant filed an appeal before the Bombay High Court 

and the matter was also sent for confirmation for the death 

sentence. By the impugned judgment the High Court dismissed 

the appeal and upheld the death sentence, and hence this appeal 

before us. 

Is the appellant guilty of murder ?

13. Mr. Jaspal Singh, learned counsel for the appellant, first 

submitted that the appellant was leading a happy married life for 

more than 25 years before the incident and hence he had no motive 

to kill his wife and 3 children. He submitted that the prosecution 

 9

has not been able to prove any motive, and motive is important in 

cases of circumstantial evidence like the present one.

14. This is a case relying entirely on circumstantial evidence, as 

there are no eye witnesses of the crime. It is true that motive is 

important in cases of circumstantial evidence, but that does not 

mean that in all cases of circumstantial evidence if the prosecution 

has been unable to satisfactorily prove a motive its case must fail. 

It all depends on the facts and circumstances of the case. As is 

often said, men may lie but circumstances do not.

15. The mother in law of the appellant Smt. Bhagwantkaur 

Oberoi, PW5 has stated in her deposition :

 ........."I was having three daughters Kanwaljeetkaur, 

 Harjeetkaur and Harvinderkaur. Accused before the 

 court is my son-in-law. He was married to my daughter 

 Kanwaljeetkaur 25-26 years before. Accused was 

 residing along with his wife and children at Sher-e-

 Punjab colony, Andheri, Mumbai. Accused came to 

 Mumbai two years before. The relations between my 

 daughter and accused were not cordial and their 

 matrimonial life was unhappy due to very angry nature of 

 the accused. I used to go to the house of my daughter 

 and vice-versa occasionally. There was talk between me 

 and my daughter Kanwaljeetkaur. I used to ask my 

 10

daughter how she is and how her husband is. At that 

time, she used to narrate to me that her husband is of very 

angry nature. She was very unhappy in her matrimonial 

life. She was subjected to the cruelty by the accused. 

She further told me that accused was behaving like a 

dictator. Children of my daughter Kanwaljeetkaur also

used to tell me regarding angry nature of accused. My 

daughter also told me that accused used to beat her by 

leather belt. However, my daughter was behaving with 

the accused by way of adaptive nature. Whenever 

Kanwaljeetkaur was narrating me regarding ill treatment 

and harassment, I used to persuade her. I also told my 

daughter Kanwaljeetkaur that she should leave accused 

and reside separately along with her children. As I know 

the nature of the accused I never dared to persuade him.

 On 19th March, 2003, there was birthday ceremony 

of my grandson Simarpalsingh. I invited my daughter 

Kanwaljeetkaur and her family members telephonically 

to attend the function at Mira road at my residence. 

Kanwaljeetkaur replied on telephone that she is unable to 

attend the function as she is busy with some work. After 

sometime my daughter Kanwaljeetkaur again made a 

telephone call to me and told that at the time of earlier 

telephone her husband was present and he quarreled and 

she along with her children were not allowed to attend 

the said function. At that time, Kanwaljeetkaur was 

crying on the telephone and while crying she told that she 

is very unhappy and she may die. I told my other 

daughter namely Harjeetkaur to ring Kanwaljeetkaur as 

there was quarrel between her and the accused. On that 

very day, at about 7 p.m. I received a telephonic call 

from Niti and she told that her father agreed and 

accordingly, we are attending the function. Accordingly, 

Kanwaljeetkaur and accused and both daughters attended 

the function. At that time, accused was under the 

influence of liquor. While leaving my residence after the 

function accused told Kanwaljeetkaur and her daughters 

that he will put you all below the running truck to die.

 11

 On 9th April, 2003, at about 11.30 p.m. I received a 

 telephonic call from the accused from his residence. On 

 10th April, 2003, at about 6 a.m. I received telephonic call 

 from Phuldeepsingh Marva-PW3 regarding fire on the 

 flat of accused. Accordingly, I went to the place of the 

 incident. When I reached, I did not find the accused 

 present. When I reached, four dead bodies were already 

 kept in front of the flat. I became unconscious noticing 

 the dead bodies. Police recorded my statement." 

16. Phuldeepsingh Marva, PW3 also supported the prosecution 

case. His wife and the wife of the appellant were real sisters. In 

his deposition he has stated :

 ..........."Before shifting to Mumbai, accused was doing 

 business at Ludhiana, Punjab in automobile spare parts. 

 Accused suffered loss in his business at Ludhiana and 

 that is why he shifted to Mumbai. We were having 

 cordial relations and we family members used to visit his 

 house and vice-versa. The relations between accused and 

 his entire family members were tense. Accused used to 

 behave with his family members as a dictator. He was 

 not having cordial relations with his family members. 

 Son and daughters of the accused did not like the 

 dictatorship of accused and that is why there were always 

 quarrels between accused and his family. Accused used 

 to tell me also that 75% decisions would be mine in my 

 house. I persuaded the accused several times to change 

 his nature. However, the accused never changed his 

 nature and he was not ready to reduce his dictatorship.

 There was also telephone in the house of accused. 

 On 10th April, 2003, I was at my residence. I received a 

 telephonic call from the landlord and estate agent of the 

 accused at about 5.30 to 5.45 a.m. that there is a fire in 

 the flat of the accused. I along with my wife rushed to 

 12

 the place of incident in my car. At about 6.30 a.m. I 

 reached the place of incident. When I reached I saw fire 

 brigade vehicles, police staff, fire brigade staff and four 

 dead bodies which were kept in front of the flat. I saw all 

 those four dead bodies. I identified four dead bodies i.e. 

 of Kanwaljeetkaur, Amandeepsingh, Niti and Taniya. I 

 noticed that accused along with his car was not present. 

 Accused used to park his Zen car in front of the flat near 

 the gate. I saw four dead bodies who sustained burn 

 injuries on their person. I saw the bangles in the wrist of 

 Kanwaljeetkaur. I also saw a piece of glass in the body 

 of Amandeepsingh near wrist. Article 1 - pair of bangles 

 before the court was in the hands of Kanwaljeetkaur. 

 Police recorded my statement." 

17. We see no reason to disbelieve PW3 or PW5. From their 

testimony it is evident that the appellant was a dictatorial 

personality, who wanted to dominate over his family and was also 

hot tempered. He would even beat his wife (deceased) with a 

leather belt.

18. Mr. Jaspal Singh, learned counsel for the appellant, submitted 

that if the relations between the accused and his wife were strained 

why did his wife Kanwaljeetkaur continue to live with him for 25 

years. In this connection, we have only to point out that in India 

many women accept the bad treatment of their husbands and 

 13

continue living with them because a girl at the time of marriage is 

told by her parents that after marriage her place is with her 

husband and she has to accept whatever treatment she gets from 

her husband and in- laws. She has to `nibhao' all treatment after 

marriage. Hence she continues living with him even if her 

husband is a brutish, nasty and loathsome person. However, it is 

evident that when the children of the accused grew up they often 

resisted and protested against the dictatorial behaviour of the 

appellant, and this led to a lot of friction in the family. Hence we 

are of the opinion that the appellant did not have a happy married 

life with his wife, rather it was just the reverse.

19. As to what motivated the appellant to commit this gruesome 

and ghastly act is impossible for us to say because the Court cannot 

enter into the mind of a human being and find out his motive. We 

can only speculate. 

20. This is a case of circumstantial evidence and in cases of 

circumstantial evidence the settled law is that the prosecution must 

 14

establish the entire chain of circumstances which connects the 

accused to the crime vide Wakkar and Anr. vs. State of Uttar 

Pradesh 2011(3) SCC 306 = JT 2011(2) SC 502, Krishnan vs. 

State represented by Inspector of police 2008(15)SCC 430=JT 

2008(6) SC 282, Sharad Birdhichand Sarda vs. State of 

Maharashtra AIR 1984 SC 1622, Mohd. Mannan alias Abdul 

Mannan vs. State of Bihar 2011(5) SCC 317 (vide para 14), etc.

21. We have, therefore, to see whether the prosecution has been 

able to establish the chain of circumstances connecting the accused 

to the crime.

22. The accused was last seen with the deceased. It has come in 

the evidence of Vinodkumar Gudri Mandal, PW16 that he was 

working with the accused at Sher-E-Punjab caterers. This witness 

along with some servants used to sleep near the bedroom of the flat 

of the accused in the veranda. He has stated that at about midnight 

when he was in the veranda in front of the flat of the accused he 

 15

heard loud sound of quarrels from the flat of the accused. He 

identified the sounds as the voice of the accused and his wife.

23. This witness has stated that he was on talking terms with the 

family members of the accused. Since he was known to the 

accused and his family members he could obviously recognize 

their voices. Hence we see no reason to disbelieve his evidence 

that at about midnight of 9.4.2003 there was a quarrel between the 

appellant and his wife. No reason has been ascribed by the 

defence counsel as to why this witness should make a false 

statement.

24. This witness has also stated that on 10.4.2003 at 4.30 a.m. he 

heard a big sound in the building. He and the other servants saw 

fire in the flat of the accused. They tried to extinguish the fire with 

the help of water and sand but were unsuccessful. One member of 

the society informed the fire brigade telephonically and the fire 

brigade came and extinguished the fire. This witness identified the 

4 dead bodies inside the flat of the accused. He also noticed that 

 16

the Zen car was not at its parking place and the accused was also 

not present.

25. This witness has also stated in his evidence that one month 

before the incident when he returned to the building where the 

incident took place he went inside the flat of the accused and 

inadvertently opened a white color plastic can and he noticed 

petrol in the said can. The witness identified the said can before 

the court.

26. We see no reason to disbelieve this witness Vinodkumar 

Gudri Mandal. No enmity has been shown between him and the 

accused and no motive shown why he should give a false statement 

against the accused.

27. PW4, Kamalsingh Mahipatsingh Rawat was working as a 

cook in the hotel cum catering of the appellant. He has stated in 

his evidence that after his duty ended at 11.30 p.m. he used to sleep 

in front of the flat of the accused in Jyotsna building where the 

 17

accused was residing with his wife and children. He said that he 

knows all the family members of the accused.

28. In his evidence he has stated that at about 11.30 to 11.45 p.m. 

he left the hotel and went towards the Jyotsna building where he 

sleeps in front of the flat of the accused. He has further stated that 

about half an hour thereafter the accused also returned to his 

residence. At about 4.00 to 4.30 a.m. he heard a noise of bursting 

of something and smoke was coming out from the flat which was 

on fire. He also heard the sound of crying from the said flat. He 

could not enter the flat as it was too smoky. Thereafter the fire 

brigade came and extinguished the fire. He entered the flat and 

saw the dead bodies of the deceased. The accused was not found 

there, nor his Maruti car. The witness had seen the Maruti car 

parked in front of the flat when he went to sleep but it was not 

found in the morning.

29. The evidences of PW3, PW4 and PW 5, which we see no 

reason to disbelieve, thus fully establish that the appellant was last 

 18

seen with his wife at about midnight and was in fact quarreling 

with her at that time.

30. The incident happened at 4 or 4.30 a.m. and hence there was 

a time gap of only about 4 hours from the time when the appellant 

was seen with his wife (deceased) and the time of the incident. 

Thus he was last seen with his wife and there was only a short 

interval between this and the fire.

31. The last seen theory comes into play where the time gap 

between the point of time when the accused and deceased were last 

seen alive and when the deceased is found dead is so small that the 

possibility of any person other than the accused being the author of 

the crime becomes impossible, vide Mohd. Azad alias Samin vs. 

State of West Bengal 2008(15) SCC 449 = JT 2008(11) SC658 

and State through Central Bureau of Investigation vs. 

Mahender Singh Dahiya 2011(3) SCC 109 = JT 2011(1) SC 545, 

S.K. Yusuf vs. State of West Bengal, J.T. 2011 (6) SC 640 (para 

14).

 19

32. In our opinion, since the accused was last seen with his wife 

and the fire broke out about 4 hours thereafter it was for him to 

properly explain how this incident happened, which he has not 

done. Hence this is one of the strong links in the chain connecting 

the accused with the crime.

33. The victims died in the house of the accused, and he was 

there according to the testimony of the above witnesses. The 

incident took place at a time when there was no outsider or 

stranger who would have ordinarily entered the house of the 

accused without resistance and moreover it was most natural for 

the accused to be present in his own house during the night.

34. Another link in the chain of circumstances connecting the 

accused with the crime is his sudden disappearance from the scene 

after the incident. The version of the accused is that he left the 

scene as he had received a message that his sister in Delhi who was 

 20

suffering from cancer had become critical, and hence he rushed 

from Mumbai to be with her. We are not at all convinced with the 

story. When a person living in Mumbai receives a message that 

his relative is critical in Delhi, he would have ordinarily take a 

flight from Mumbai to Delhi, and would not go by car, which 

journey would take several days. A flight from Mumbai to Delhi 

takes two hours. There was no shortage of money with the 

appellant as he was found with cash of Rs.7,68,080/-.

35. Leaned counsel for the appellant submitted that the appellant 

first went by car to the Dargah in Ajmer to pray for his sister. We 

cannot accept this version. When a relative in Delhi is critical, a 

person in Mumbai would have rushed to Delhi by flight to see her 

and would have gone to a Dargah only subsequently. Under 

Section 114 of Evidence Act we have to presume the natural 

conduct of persons. Section 114 states :

 "The Court may presume the existence of any fact which 

 it thinks likely to have happened, regard being had to the 

 common course of events, human conduct, and public 

 and private business" 

 21

36. We agree with the High Court which has observed in the 

impugned judgment :

 ........."We are not at all in agreement with the 

 submissions made by the advocate for the accused in this 

 regard. There are many reasons for this. The first reason 

 is that there is nothing on record to show that a day or 

 two before the accused left Mumbai on 10th April, 2003, 

 the accused had received any urgent message from the 

 wife of D.W.3 that his presence was imminently and 

 immediately required at Delhi and her condition was 

 critical or that the accused received SOS, that he should 

 immediately rush to Delhi. Secondly, if the accused had 

 earlier planned to go to Delhi in such a case of urgency 

 and exigency, ordinarily he should have and could have 

 traveled by flight or train and would not have driven to 

 Delhi by his car. Thirdly, looking to the age of accused, 

 who was around 50 to 52 years at that time, ordinarily the 

 accused would not have gone alone on such a long 

 journey. He had a number of servants at his disposal, at 

 least 7 were sleeping in front of his flat in the veranda at 

 that very night, he could have taken one of them as 

 assistant on the road. Fourthly, there was no reason for 

 the accused not to have taken a driver for such a long 

 journey. Fifthly, there is no one examined from the hotel 

 to whom the accused had disclosed that he would not be 

 available for looking after the business for at least a 

 couple of weeks or one week. The fact that the accused 

 had with him 7 safari dresses and 7 turbans when he was 

 arrested, clearly shows that the accused had an intention 

 to stay for quite a long time away from his house and 

 away from his business. There is nothing on record to 

 show that prior to this incident the accused was not on 

 talking terms or visiting terms with his mother in law. 

 Not a single suggestion was give to this witness by the 

 22

 accused that they were informed by the accused that he is 

 going to Delhi to see his sister or wife of D.W.3. Next 

 impossibility in the theory of alibi is that there is no 

 earthly reason for the accused to leave his house at odd 

 time of 2.00 a.m. He could have traveled either before 

 mid night or he could have traveled after sunrise. Further 

 there is no explanation from the accused as to why he 

 was carrying such a huge amount of Rs.7,68,080/- and 24 

 silver coins." 

37. We, therefore, agree with the High Court that the plea of alibi 

was totally false and bogus.

38. It is difficult for us to speculate as to why the accused fled 

from the scene of the crime carrying cash of Rs.7,68.080/- apart 

from 7 safari suits and that too without a driver or an assistant, all 

of whom were easily available to him. It is quite possible that after 

having committed this horrible crime the accused may have 

himself realized the gravity of his crime and in this shocked state 

fled from the scene. However, this is only a speculation and 

nothing turns on it. 

39. It has then been argued that ordinarily the accused and his 

wife used to sleep in one bedroom, while the 3 children used to 

 23

sleep in the other bedroom. However, all 4 victims were found 

burnt in the children's bedroom. This has been explained by the 

prosecution by pointing that in the night of 9.4.2003 when the 

accused came from his hotel he had a heated quarrel with his wife 

and due to this quarrel the wife decided to sleep with the children 

and not with the accused. This version seems quite probable, and 

the defence cannot make much out of the fact that all 4 bodies 

were found in one bedroom.

40. When the police party carried out panchanama of the house 

of the accused, that is, after the fire was fully extinguished and 

when the FIR was lodged by PW1, PSI Prakash Kamble, he 

found, as stated by him, that in the bedroom to the northern side of 

the hall on the bed i.e. on the mattress of the bed a 10 litre white 

plastic can was seen and it had some petrol in it. It was also found 

and noticed that the can was new. It is a fact that all the four 

inmates were burned to death by using petrol. Therefore, the 

finding of the 10 litre can with some petrol in its clearly shows that 

 24

petrol, sufficient in quantity to burn and kill all the four persons, 

was brought by the accused. 

41. In addition to this, the prosecution has also tendered one 

more piece of evidence which is in the form of recovery at the 

instance of the accused under Section 27 of the Evidence Act. In 

this regard, the prosecution has examined PW14 Nilesh Kamalakar 

Aarate the panch witness and proved Exhibit 50 and 50-A. Exhibit 

50 is the statement of the accused under Section 27 of the Evidence 

Act and Exhibit 50-A is recovery panchanama. In his evidence 

PW14 has stated that on 14th April, 2003 he was called by 

Meghwadi Police as the accused made a voluntary statement that 

he will point out the bucket in which he took petrol from the 

plastic can. This statement was recorded and thereafter the 

accused led the police party to his flat. The seal of the flat was 

removed and from the bath room of the said flat the accused 

pointed out the red bucket. Discovery panchanama was Exhibit 

50-A and red bucket was Article 14.

 25

42. This red bucket was sent to a Chemical Analyzer. The report 

of the C.A. (Exhibit 67) is that the bucket showed positive result 

regarding detection of petrol. This means that this bucket was used 

for pouring petrol on all the four victims.

43. Regarding this piece of evidence, the learned counsel for the 

appellant contended that this was a fabrication by the police. 

Learned counsel contended that if on 10th April, 2003 a detailed 

search of the house of the accused for finding out incriminating 

articles was made and if a detailed panchanama was prepared and a 

number of articles were seized, then how was it that the police 

could not find out this bucket on 10th April, 2003 itself and why 

they waited for recovery for this bucket till the accused was 

arrested and brought to Mumbai and made discovery statement on 

14th April, 2003.

44. We are not at all convinced by this submission. It is true that 

on 10th April, 2003 the flat of the accused was searched, but it is 

quite natural that the investigating officer did not understand the 

 26

significance of this bucket even if it was seen on that day. They 

could not visualize or imagine the use of the bucket for splashing 

or spreading the petrol on the four victims. They came to know 

about it only after the accused made the disclosure statement, and 

then they recovered this bucket. The investigating office, 

regarding other aspects of the matter appears to be truthful and 

sincere. There is no reason to suspect the bona fide of the 

investigating officer, and therefore there is nothing on record from 

which it can be inferred that this bucket was planted by the police 

to strengthen the case against the accused.

45. Learned counsel for the appellant submitted that the appellant 

was making phone calls to his mother-in-law after leaving his flat 

in Mumbai on 10.4.2003. In our opinion nothing turns on that. It 

has come in evidence that Amandeep Singh, son of the accused, 

was looking after the business, and if the accused was going away 

for 3 to 4 days it was natural for him to expect calls from, and 

 27

make calls to, his son Amandeep Singh and his wife and other 

relatives, but that was not done.

46. The learned counsel for the appellant then submitted that as 

per the prosecution case, all the four victims were in one bed room. 

Two bodies were found on the bed and two were lying on the 

ground. The learned counsel contended that if all four victims 

were sleeping on one bed then how were two bodies found on the 

ground. He also argued that if petrol was splashed on the persons 

of four victims then why did none of them wake up before the 

accused set them to fire. In our opinion, the presence of the 10 

litre can and using the bucket clearly show that petrol in large 

quantity was used. Use of the bucket further fortifies the 

prosecution case because if the petrol was sprinkled from a can it 

would have taken time to cover all the bodies of four persons, the 

bed and the surroundings. But use of the bucket clearly shows that 

splashing of petrol could be achieved within a second and that 

profuse splashing of petrol could be achieved by using the bucket 

 28

and then setting the petrol on fire would not even require five 

seconds. Petrol is a very combustible material. It might be that 

before the actual death occurred two persons rolled down from the 

bed and fell on the ground. All this is speculation on which 

nothing turns. Since there were no eye witnesses, and since 

presence of the accused a few hours before the crime is proved, it 

was for the accused to explain all this.

47. Mr. Jaspal Singh submitted that several of the circumstances 

were not put to the accused under Section 313 Cr.P.C. It is true 

that circumstances which were not put to the accused in his 

examination under Section 313 cannot be used against him, vide 

State of U.P. vs. Mohd. Ikram, J.T. 2011 (6) SC 650 (para 13). 

However, we have carefully examined the statements of the 

accused under Section 313 Cr.P.C., and we find that as many as 

168 questions were put to him relating to all the relevant 

circumstances. Hence there is no merit in this submission. 

 29

48. Mr. Jaspal Singh then submitted that the incised wounds on 

the son of the appellant, Amandeep, have not been explained by 

the prosecution. In this connection we wish to say that since there 

were no eye witnesses and the entire prosecution case rests on 

circumstantial evidence it is hardly for the prosecution to explain 

these injuries, rather it was for the appellant, who was present at 

the time of the incident (as we have found) to explain them. 

Moreover, the question of explaining the injuries ordinarily arises 

when the injuries are on an accused, and not on the victim. At any 

event, the prosecution has explained that these were due to the 

broken glass pieces found on the spot. 

49. Thus, in our opinion the prosecution has been able to 

establish the entire chain of circumstances which connect the 

accused to the crime. These are :

 1. There were strained relations between the accused 

 and his family members including his wife. He 

 used to beat his wife with a leather belt, and was 

 dictatorial, which attitude was resented by the 

 family members. 

 30

 2. The accused came to his flat on 9th April, 2003 at 

 midnight, and was last seen with his wife in his 

 flat where his children also lived.

 3. The accused had quarrel with his wife for five or 

 ten minutes on the night of the incident.

 4. Ten litre can with petrol residue was found in the 

 house.

 5. The bucket showing positive result in the test 

 conducted by the Chemical Analyzer was found to 

 have been used for splashing or throwing the 

 petrol.

 6. The incident happened in the flat of the accused 

 where there was no one else inside except his 

 family members. All the deceased were asleep 

 when the petrol was poured over them and their 

 bodies set on fire. They were killed in a most 

 gruesome, diabolical and cruel manner.

 7. It was a pre-planned murder, because the accused 

 had brought sufficient petrol into his flat to kill 

 everyone. Ordinarily no one keeps so much petrol 

 in his residential apartment.

 8. The accused absconded from the scene of the 

 offence immediately thereafter, and did not 

 disclose to his family members or servants about 

 his departure.

 9. The incident occurred between 4 to 4.30 A.M., 

 and the accused was the person last seen with his 

 wife before the incident. 

 31

 10. The accused pointed out the bucket in his 

 statement under Section 27 of the Evidence Act;

 11. The accused was arrested at Kisangadh, 

 Madanganj in Ajmer District (Rajasthan) four 

 days thereafter with huge cash of Rs.7,60,080/-, 

 with safari dresses, turbans and 24 silver coins 

 etc..

 12. He raised false defence of alibi 

 13. There was full opportunity for the accused to kill 

 all the four persons. No one else was present in 

 the flat.

Does the Appellant deserves the death sentence ? 

Death Penalties Worldwide

50. There is a wide divergence in various countries in the world 

whether to permit or not permit the death penalty. According to 

Amnesty International as per 31.12.2010, 96 countries have legally 

abolished the death penalty, 34 countries have not used it for a 

considerable period of time while 58 countries have still retained 

it. Most European countries have abolished the death penalty . 

The United Kingdom abolished death penalty in 1973, France in 

1981, Germany in 1949, Italy in 1947 etc. Canada abolished it in 

1976. Russia legally permits death penalty, but has not used it 

after 1996. Australia last used the death penalty in 1967, and 

 32

formally abolished it in 2010. China has death penalty for a 

variety of crimes, e.g. aggravated murder, drug trafficking, large 

scale corruption etc. China executes more people than all the rest 

of the world put together. In African and Latin American countries 

some permit death penalty while others do not. Most Asian and 

Arab countries permit death penalty. As regards the United States 

of America, some States permit it while others do not. The US 

Supreme Court in Furman vs. Georgia 408 US 238 (1972) held 

the death penalty to be unconstitutional, but this decision was 

reversed four years later in Gregg vs. Georgia 428 US 153 (1976) 

which held that the death penalty is not unconstitutional. 

51. The UN General Assembly in 2007-08 passed a non binding 

resolution calling for a global moratorium of execution with a view 

to eventual abolition. However, 65% of the world population live 

in countries like China, India, Indonesia and the US which 

continue to apply death penalty, although both India and Indonesia 

only use it rarely. Each of these four nations voted against the UN 

General Assembly resolution. Of the 194 independent States in 

the world that are members of the United Nations or have UN 

observer status, 42(22%) maintain the death penalty both in law 

and practice, 95 (49%) have abolished it, 8(4%) retain it for crimes 

committed in exceptional circumstances such as in time of war and 

49(25%) permit its use for ordinary crimes, but have not used it for 

 33

at least 10 years and have a policy or established practice of not 

carrying out an execution or it is under a moratorium.

52. In the present case, we are not going into the validity or 

otherwise of various theories of criminal penology viz., the 

retributive, deterrent, preventive and reformative theories. Suffice 

it to say that there are conflicting views and even conflicting data 

on this topic (see `Theories of Punishment' edited by Stanley E. 

Grupp, `Punishment' by Ted Honderich, `Punishment' by Philip 

Bean, `The Death Penalty' edited by Irwin Isenberg, `The Penalty 

of Death' by Thorsten Sellen, `The Death Penalty' by Roger Hood, 

etc.). We shall, therefore, confine ourselves to the case before us.

Death Penalty in India

53. Section 302 provides the punishment for murder. It 

stipulates a punishment of death or imprisonment for life and fine. 

Once an offender is found by the court to be guilty of the offence 

of murder under Section 302, then it has to sentence the offender to 

either death or for imprisonment for life. The court has no power 

to impose any lesser sentence. 

 34

54. If there is a reasonable doubt about the guilt of the offender, 

the only proper verdict is to acquit him and not to impose a 

sentence lesser than imprisonment for life vide Santosh vs. State 

of MP AIR 1975 SC 654. 

55. The Law Commission of India in its 35th Report, after 

carefully sifting all the materials collected by them, recorded their 

views regarding the deterrent effect of capital punishment as 

follows:

 "In our view capital punishment does act as a deterrent. We have 

 already discussed in detail several aspects of this topic. We state 

 below, very briefly, the main points that have weighed with us in 

 arriving at the conclusion:

 (a) Basically, every human being dreads death. 

 (b) Death, as a penalty, stands on a totally different level 

 from imprisonment for life or any other punishment. 

 The difference is one of quality, and not merely of 

 degree. 

 (c) Those who are specifically qualified to express an 

 opinion on the subject, including particularly the 

 majority of the replies received from State 

 Governments, Judges, Members of Parliament and 

 Legislatures and Members of the Bar and police 

 35

 officers - are definitely of the view that the deterrent 

 object of capital punishment is achieved in a fair 

 measure in India. 

 (d) As to conduct of prisoners released from jail (after 

 undergoing imprisonment for life), it would be 

 difficult to come to a conclusion, without studies 

 extending over a long period of years.

 (e) Whether any other punishment can possess all the 

 advantages of capital punishment is a matter of doubt. 

 (f) Statistics of other countries are inconclusive on the 

 subject. If they are not regarded as proving the 

 deterrent effect, neither can they be regarded as 

 conclusively disproving it".

56. Prior to 1955, under the old Criminal Procedure Code 1898, 

Section 367 (5) of the Code stipulated that the Court had to give 

reasons, if the sentence of death was not imposed in a case of 

murder. In other words, imposition of death sentence for the 

offence of murder was the rule, and if the court desired to make a 

departure from the rule and impose the lesser punishment of 

imprisonment for life, it was required to give reasons for the same. 

In 1955, sub- Section 5 of Section 367 was deleted. The result of 

such deletion was that the discretion available to the Court in the 

matter of the sentence to be imposed in a case of murder was 

 36

widened. Several High Courts also interpreted the consequence of 

the deletion to mean that the sentence of life imprisonment was the 

normal sentence for murder and the sentence of death could be 

imposed only if there were aggravating circumstances. The Code 

of the Criminal Procedure was further amended in 1973, making 

life imprisonment the normal rule. Section 354 (3) of the new 

Code provides: 

 "When the conviction is for an offence punishable with 

 death or, in the alternative, imprisonment for life or 

 imprisonment for a term of years, the judgment shall 

 state reasons for the sentence awarded and, in the case 

 of sentence of death, the special reasons for such 

 sentence". 

57. Thus in the new Code, the discretion of the judge to impose 

death sentence has been narrowed, for the court has now to provide 

special reasons for imposing a sentence of death. It has now made 

imprisonment for life the rule and death sentence an exception, in 

the matter of awarding punishment for murder. 

58. In Bachan Singh vs State of Punjab, AIR 1980 SC 898, a 

Constitution Bench (5 Judge Bench) of this Court, while upholding 

 37

the constitutional validity of death sentence observed (vide para 

207): 

 " For persons convicted of murder life imprisonment is 

 the rule and death sentence an exception. A real and 

 abiding concern for the dignity of human life postulates 

 resistance to taking a life through law's instrumentality. 

 That ought not to be done save in the rarest of rare cases 

 when the alternative option is unquestionably 

 foreclosed".

59. After Bachan Singh's case (supra) this Court again 

considered the question as to when death sentence should be 

imposed in Machhi Singh and others vs State of Punjab AIR 

1983 SC 957 (a 3 Judge Bench decision). In that case the accused 

had methodically in a pre planned manner murdered seventeen 

persons of a village including men, women and children. The 

accused were awarded death sentences but the Court held that in 

order to apply the guidelines of Bachan Singh's case (supra) inter-

alia the following questions should be asked: (a) Is there something 

uncommon about the crime which renders sentence of 

imprisonment for life inadequate and called for a death sentence? 

(b) Are the circumstances of the crime such that there is no 

alternative but to impose death sentence even after according 

maximum weightage to the mitigating circumstances which speak 

 38

in favour of the offender. The Court held that if the answer to the 

above is in affirmative, then death sentence is warranted.

60. In Macchi Singh's case (supra) this Court further observed: 

 "The reasons why the community as a whole does not 

 endorse the humanistic approach reflected in `death 

 sentence-in-no- case' doctrine are not far to seek. In the 

 first place, the very humanistic edifice is constructed on 

 the foundation of `reverence for life' principle. When a 

 member of the community violates this very principle by 

 killing another member, the society may not feel itself 

 bound by the shackles of this doctrine. Secondly, it has to 

 be realized that every member of the community is able 

 to live with safety without his or her own life being 

 endangered because of the protective arm of the 

 community and on account of the rule of law endorsed by 

 it. The very existence of the rule of law and the fear of 

 being brought to book operates as a deterrent to those 

 who have no scruples in killing others it if suits their 

 ends. Every member of the community owes a debt to the 

 community for this protection. When ingratitude is 

 shown instead of gratitude by killing a member of the 

 community which protects the murderer himself from 

 being killed, or when the community feels that for the 

 sake of self- preservation the killer has to be killed, the 

 community may well withdraw the protection by 

 sanctioning the death penalty. But the community will 

 not do so in every case. It may do so (in rarest of rare 

 cases) when its collective conscience is so shocked that it 

 will expect the holders of the judicial power centre to 

 inflict death penalty irrespective of their personal opinion 

 as regards desirability or otherwise of retaining death 

 penalty. The community may entertain such a sentiment 

 when the crime is viewed from the platform of the 

 motive for, or the manner of commission, of the crime, or 

 39

 the anti-social or abhorrent nature of the crime, such as 

 for instance: 

I. Manner of Commission of Murder

 When the murder is committed in an extremely brutal, 

 grotesque, diabolical, revolting or dastardly manner so as 

 to arouse intense and extreme indignation of the 

 community. For instance,

 (i) when the house of the victim is set aflame with the 

 end in view to roast him alive in the house.

 (ii) when the victim is subjected to inhuman acts of 

 torture or cruelty in order to bring about his or her death.

 (iii) when the body of the victim is cut into pieces or his 

 body is dismembered in a fiendish manner.

II. Motive for commission of murder

 When the murder is committed for a motive which 

 evinces total depravity and meanness. For instance when 

 (a) a hired assassin commits murder for the sake of 

 money or reward (b) a cold-blooded murder is committed 

 with a deliberate design in order to inherit property or to 

 gain control over property of a ward or a person under 

 the control of the murderer or vis-`-vis whom the 

 murderer is in a dominating position or in a position of 

 trust, or (c) a murder is committed in the course of 

 betrayal of the motherland.

III. Anti Social or Socially abhorrent nature of the crime 

 (a) When murder of a member of a Scheduled Caste or 

 minority community etc., is committed not for personal 

 reasons but in circumstances which arouse social wrath. 

 For instance when such a crime is committed in order to 

 terrorize such persons and frighten them into fleeing 

 from a place or in order to deprive them of, or make them 

 surrender lands or benefits conferred on them with a view 

 to reverse past injustices and in order to restore the social 

 40

 balance. (b) In cases of 'bride burning' and what are 

 known as 'dowry deaths' or when murder is committed in 

 order to remarry for the sake of extracting dowry once 

 again or to marry another woman on account of 

 infatuation. 

 IV. Magnitude of Crime 

 When the crime is enormous in proportion. For instance 

 when multiple murders say of all or almost all the 

 members of a family or a large number of persons of a 

 particular caste, community, or locality, are committed.

 V. Personality of victim of murder

 When the victim of murder is (a) an innocent child who 

 could not have or has not provided even an excuse, much 

 less a provocation, for murder (b) a helpless woman or a 

 person rendered helpless by old age or infirmity (c) when 

 the victim is a person vis-`- vis whom the murderer is in 

 a position of domination or trust (d) when the victim is a 

 public figure generally loved and respected by the 

 community for the services rendered by him and the 

 murder is committed for political or similar reasons other 

 than personal reasons."

61. In Macchi Singh's case (supra) this Court further observed 

that in determining the culpability of an accused and the final 

decision as to the nature of sentence, a balance sheet of the 

aggravating and mitigating circumstances vis-a-vis the accused had 

to be drawn up and in doing so the mitigating circumstances had to 

be given full weight so that all factors were considered before the 

option is exercised. 

 41

Some decisions where death penalty has been affirmed 

by this Court 

62. We may now consider some decisions where death penalty 

has been given by the court holding the crimes to belong to the 

`rarest of the rare cases'. 

63. In Sunder Singh vs. State of Uttaranchal, (2010) 10 SCC 

611 the accused had gone to the place of occurrence well prepared 

carrying jerry cans containing petrol, sword, pistol with two 

bullets, which showed his pre-meditation and cold blooded mind. 

In the incident five persons lost their lives while the sole surviving 

lady survived with 70% burn injuries. The murder was committed 

in a cruel, grotesque and diabolical manner, and closing of the door 

of the house was the most foul act by which the accused actually 

intended to burn all the persons inside the room and precisely that 

happened. There were no mitigating circumstances, and hence it 

was one of the rarest of rare cases. Consequently, the death 

sentence was justified. 

 42

64. In C. Muniappan vs. State of T. N., (2010) 9 SCC 567 three 

members of an unlawful assembly engaged in road blocking (in a 

public demonstration against a court verdict), committed planned 

murder by burning a bus carrying helpless, innocent, unarmed, girl 

students in a totally unprovoked situation. Three girls died and 20 

got burn injuries in the incident. This Court held that it was one of 

the rarest of rare cases, one where the accused would be a menace 

and threat to the harmonious and peaceful co-existence of the 

society. The accused deliberately indulged in a planned crime 

without any provocation and meticulously executed it, and hence 

the death sentence was the most appropriate punishment. There 

being aggravating circumstances and no mitigating circumstance 

death sentence imposed on the three members of the unlawful 

assembly was upheld. 

65. In M. A. Antony vs. State of Kerala, (2009) 6 SCC 220 all 

six members of a family were murdered at their residence at night. 

The motive was money, and the absence of the accused from his 

 43

own residence during the corresponding periods i.e on the night of 

the occurrence till next morning, and recovery of clothes under 

Section 27 of Evidence Act 1872, finger prints on the door steps of 

the house matching with those of accused, and recovery of scalp 

hair of accused from place of occurrence were damning 

circumstantial evidence. Having regard to the chain of 

circumstances the death sentence was upheld. 

66. In Jagdish vs. State of M. P., (2009) 9 SCC 495 the 

assailant murdered his wife and five children (aged 1 to 16 years) 

in his own house. The murders wee particularly horrifying as the 

assailant was in a dominant position and a position of trust as the 

head of the family. The assailant betraying the trust and abusing 

his position assailant murdered his wife and minor children 

(youngest being the only son just 1 year old ). This Court held that 

the balance sheet of aggravating and mitigating circumstances was 

heavily weighted against the assailant making it a rarest of rare 

case. Consequently the award of death sentence was just. 

 44

67. In Prajeet Kumar Singh vs. State of Bihar, (2008) 4 SCC 

434 the accused was a paying guest for a continuous period of four 

years in lieu of a sum of Rs. 500/- for food and meals. He brutally 

executed three innocent defenseless children aged 8, 15 and 16, 

attempted to murder the father (informant) and mother who 

survived the attack with multiple injuries. There was no 

provocation or reason for committing this ghastly act at a time 

when the children were sleeping. There were several incised 

wounds (muscle deep or bone deep) caused to the deceased. 

Considering the brutality, diabolic, inhuman nature and enormity 

of the crime (multiple murders and attacks), this Court held that the 

mindset of the accused could not be said to be amenable to any 

reformation. Therefore it came under the rarest of rare category 

where not awarding a death sentence would have resulted in failure 

of justice. 

68. In Ram Singh vs. Sonia, (2007) 3 SCC 1 the wife in 

collusion with her husband murdered not only her step brother and 

 45

his whole family including three tiny tots of 45 days, 2 and = years 

4 years, but also her own father, mother and sister so as to deprive 

her father from giving property to her step brother and his family. 

The murders were committed in a cruel, pre-planned and diabolic 

manner while the victims were sleeping, without any provocation 

from the victim's side. It was held that the accused persons did not 

possess any basic humanity and completely lacked the psyche or 

mindset amenable to any reformation. It was a revolting and 

dastardly act, and hence the case fell within the category or rarest 

of rare cases and thus death sentence was justified. 

69. In State of U.P. vs. Satish (2005) 3 SCC 114 the victim 

was a six year old girl who lost her life on account of the bestial 

acts of the respondent who raped and murdered her. The body was 

found in a sugarcane field and blood was oozing from her private 

parts and there were marks of pressing on her neck (suggesting 

death by strangulation). It was held that this diabolic, iniquitous, 

flagitious act reached the lowest level of humanity when the rape 

 46

was followed by brutal murder. Hence death sentence was 

justified.

70. In Holiram Bordoli vs. State of Assam (2005) 3 SCC 793 

the accused persons were armed with lathis, and various other 

weapons. They came to the house of the victim and started pelting 

stones on the bamboo wall of the said house. Thereafter, they 

closed the house from the outside and set the house on fire. When 

the son, daughter and the wife of the victim somehow managed to 

come out of the house, the accused persons caught hold of them 

and threw them into the fire again. Thereafter the elder brother 

who was staying in another house at some distance from the house 

of the victim was caught and dragged to the courtyard of the 

accused where the accused cut him into pieces. It was held that 

there was absence of any strong motive and the victims did not 

provoke or contribute to the incident. The accused was the leader 

of the gang, and the offence was committed in the most barbaric 

manner to deter others from challenging the supremacy of the 

 47

accused in the village. Held, that no mitigating circumstances to 

refrain from imposing death penalty were found. 

71. In Saibanna vs. State of Karnatka (2005) 4 SCC 165 the 

accused was out on parole in the case of murder of his first wife, in 

which he was already convicted and sentence to life imprisonment. 

He pre-planned the murder of his second wife and daughter (aged 

1 to 1 = years) when the victims were sleeping by using a hunting 

knife (jambia) which is not ordinarily available in a house. There 

were no justified reasons for any extenuating circumstances in 

favour of the accused. Putting the case under the `rarest of rare 

case' category death sentence was upheld. 

72. In Karan Singh vs. State of U.P. (2005) 6 SCC 342 the two 

appellants chased the deceased persons and butchered them with 

axes and other weapons in a very dastardly manner. After killing 

three adults, the appellants entered their house and killed two 

children who in no way were involved with the alleged property 

dispute with the appellants. It was held that the sole intention here 

 48

was to exterminate the entire family. Thus, it was a `rarest of the 

rare' case. 

73. In Gurmeet Singh vs. State of U.P. (2005) 12 SCC 107, 

appellant G, along with his friend L killed thirteen members of his 

family including small kids for a flimsy reason (objection of family 

of G to the visits and stay of L at their house) while they were 

asleep. Award of death sentence was held proper. 

74. In Sushil Murmu vs. State of Jharkhand (2004) 2 SCC 

338, the accused sacrificed a child of another person before 

Goddess Kali in a most brutal and diabolic manner for personal 

gain and to promote his fortunes by appeasing the deity with blood. 

It was held that superstition can not and does not provide 

justification for any killing, much less a planned and deliberate 

one.

75. In State of Rajasthan vs. Kheraj Ram (2003) 8 SCC 224, 

the accused deliberately planned and executed his two innocent 

 49

children, wife and brother-in-law when they were sleeping at night. 

There was no remorse for such a gruesome act which was 

indicated by the calmness with which he was smoking "chilam" 

after the commission of the act. As it was pre-planned and after 

the entire chain of events and circumstances were comprehended, 

the inevitable conclusion, was that the accused acted in a most 

cruel and inhuman manner and the murder was committed in an 

extremely brutal, grotesque, diabolical, revolting and dastardly 

manner. 

76. In Om Prakash vs. State of Uttaranchal (2003) 1 SCC 648 

the accused, a domestic servant killed three innocent members and 

attempted to kill the fourth member of the family of his employer 

in order to take revenge for the decision to dispense with his 

service and to commit robbery. The death sentence was upheld.

77. In Gurdev Singh vs. State
 of Punjab, AIR 2003 SC 4187, 

the appellants, having known that on the next day a marriage was 

to take place in the house of the complainant and there would be 

 50

lots of relatives present in her house, came there on the evening 

when a feast was going on and started firing on the innocent 

persons. Thirteen persons were killed on the spot and eight others 

were seriously injured. The appellants thereafter went to another 

place and killed the father and brother of PW 15. Out of the 

thirteen persons, one of them was a seven-year old child, three 

others had ages ranging between 15 and 17 years. The death 

sentence was held justified.

78. In Praveen Kumar vs. State of Karnataka (2003) 12 SCC 

199 the accused was accommodated by one of the victims (who 

was his aunt) despite her large family, and she gave him an 

opportunity to make an honest living as a tailor. The accused 

committed the pre-planned, cold-blooded murders of relatives and 

well wishers (including one young child) while they were sleeping. 

After the commission of the crime the accused absconded from 

judicial custody for nearly four years, which indicates the fact that 

 51

the possibility of any remorse are rehabilitation is nil. Held the 

extreme penalty of death was justified. 

79. In Suresh vs. State of U. P. AIR 2001 SC 1344 the brutal 

murder of one of the accused's brother and his family members 

including minor children at night when they were fast asleep with 

axe and chopper by cutting their skulls and necks for a piece of 

land was considered to be a grotesque & diabolical act, where any 

other punishment than the death penalty was unjustified. 

80. In Molai vs. State of M.P. AIR 2000 SC 177, the Jail officer 

sent to his quarter a guard and a prisoner to work in the house. The 

16 year old daughter of the said officer was at that time alone in 

the quarter and was preparing for her class 10th examination. 

Taking advantage of her loneliness, both the guard and the prisoner 

raped her, strangulated her and stabbed her. Thereafter with an 

intention to hide their crime they threw her dead body into a septic 

tank. This Court held that death was a fit punishment. 

 52

81. In Ramdeo Chauhan vs. State of Assam AIR 2000 SC 

2679, the accused committed a pre-planned cold-blooded brutal 

murder of four inmates of a house including two helpless women 

and a child aged 2 = years during their sleep with a motive to 

commit theft. The accused also attacked with a spade another 

inmate of the house, an old woman, and a neighbour when they 

entered the house. The Court held that the young age (22 years) of 

the accused at the time of committing the crime was not a 

mitigating circumstance, and death penalty was a just and proper 

punishment. 

82. In Narayan Chetanram Chaudhary vs. State of 

Mahrashtra AIR 2000 SC 3352 there was a pre-planned, 

calculated, cold-blooded murder of five women, including one 

pregnant woman and two children aged 1 = years and 2 = years, 

all inmates of a house, in order to wipe out all evidence of robbery 

and theft committed by two accused in the house at a time when 

male members of the house were out. It was held that the young 

 53

age (20-22 years) of the accused persons cannot serve as a 

mitigating circumstance.

83. In State of U.P. vs. Dharmendra Singh AIR 1999 SC 3789, 

5 persons were murdered, an old man of 75 years, a woman aged 

32 years, two boys aged 12 years and a girl aged 15 years, at night 

when they were asleep by inflicting multiple injuries to wreak 

vengeance. This Court held that the ghastly and barbaric murder 

can be termed as rarest of the rare case and death penalty was just 

for such a diabolic act.

84. In Ronny vs. State of Mahrashtra AIR 1998 SC 1251, the 

accused was the nephew of the deceased, and because of the 

relationship he gained access inside the house for himself and his 

friends. The victims were unarmed and the crime was committed 

for gain i.e. to rob the valuables of the deceased family. The 

accused then killed all three members and then committed rape on 

the lady who was the wife of his maternal uncle and as old as his 

mother. Considering the facts of the case this Court held that it 

 54

cannot be said that the offences were committed under the 

influence of extreme mental or emotional disturbance as 

everything was done in a preplanned way, and hence death penalty 

was upheld. 

85. In Surja Ram vs. State of Rajasthan AIR 1997 SC 18, the 

appellant murdered his bother, his two minor sons and an aged 

aunt by cutting their neck with a kassi while they were all sleeping. 

He also attempted to murder his brother's wife and daughter but 

they survived with serious injuries. The dispute between them 

only related to putting a barbed fence on a portion of their 

residential complex. The death sentence was held to be justified.

86. In Umashankar Panda vs. State of M.P AIR 1996 SC 

3011, the accused and his wife and five children took dinner 

together and went to bed in the same room. At midnight the 

accused started to attack his wife with a sword and on hearing the 

shouting the children woke up. On being questioned by the wife as 

to why he was trying kill her he did not give an answer but rather 

 55

inflicted on her head, hand and foot more injuries. When the eldest 

daughter intervened, he did not spare her either. The wife and two 

children died but three others escaped death. On being asked, the 

accused confessed to a witness that he had slaughtered all of them 

but he did not know how three others had escaped the death. This 

attitude of the accused clearly showed that he had purposely 

caused injuries to all his family members in order to liquidate them 

and was not happy that even the three children had escaped from 

death. There was no provocation or other circumstances to suggest 

that there was any quarrel between the accused and his wife or the 

children. The way in which the crime was executed showed that it 

was pre-meditated and not on account of sudden provocation. 

87. In Ravji vs. State of Rajasthan AIR 1996 SC 787, the 

accused in a cool and calculated manner wanted to kill his wife and 

three minor children while they were asleep. When his mother 

intervened he injured her with an axe with an intention to kill her. 

He then silently went to the neighbour's house and attempted to 

 56

kill his neighbour's wife who was also asleep. When his 

neighbour intervened he killed him too and fled from the place of 

occurrence and tried to hide himself. The accused had a solemn 

duty to protect his family members and maintain them but he 

betrayed the trust reposed in him in a very cruel and calculated 

manner without any provocation whatsoever. Hence the death 

penalty had to be upheld.

88. In Suresh Chandra Bahri vs. State of Bihar AIR 1994 SC 

2420, the wife of accused wanted to sell her house and migrate to 

USA with her children against the wishes of her husband. Hence, 

the accused killed his wife after torturing her by truncating her 

body into two parts in a devilish style evincing total depravity only 

to gain control over the property. Further he killed his own two 

innocent children making them believe that they were being taken 

on a pleasure trip to the farm, killing them by inflicting severe 

injuries on their neck and other parts of the body and throwing 

them in the river. 

 57

89. In Bheru Singh vs. State of Rajasthan (1994) 2 SCC 467, 

the accused slaughtered his own wife and five children for no fault 

of theirs but only on mere suspicion that his wife was having an 

affair. This deserved a death sentence. 

90. In Sevaka Perumal vs. State of T. N. AIR 1991 SC 1463, 

the accused indulged in illegal business of purchase and sale of 

"ganja". They conspired to entice innocent boys from affluent 

families, took them to far flung places where the dead body could 

not be identified. Letters were written to the parents purporting to 

be by the deceased to delude the parents that the missing boys 

would one day come home alive and that they should not give any 

report to the police so that the crime would go undetected. Four 

murders in a span of five years were committed for gain in cold-

blooded, premeditated and planned way. This Court held that any 

other penalty except the death penalty would amount to a 

miscarriage of justice. 

 58

91. In Sudam @ Rahul Kaniram Jadhav vs. State of 

Maharashtra (Criminal Appeal Nos. 185-186 of 2011 decided on 

4.7. 2011 this Court held that where an accused was found guilty 

of committing murder of four children and a woman with whom he 

was living with as husband and wife, the death penalty was 

justified. In that decision Hon'ble C. K. Prasad, J. observed :

 "Now we proceed to consider as to whether the case in 

 hand falls in the category of rarest of the rarest cases. 

 The appellant had chosen to kill the woman with whom 

 he lived as husband and wife, a woman who was in deep 

 love with him and willing to pay Rs. 15,000/- to PW. 6, 

 Muktabai, to save the relationship. Appellant had not 

 only killed the two children of the deceased who were 

 born from the first husband but also killed his own two 

 children. He projected himself to be single and changed 

 his name to dupe a woman and in fact succeeded in 

 marrying her. However, when the truth came to light, he 

 killed five persons. The manner in which the crime has 

 been committed clearly shows it to be premeditated and 

 well planned. It seems that all the four children and the 

 woman were brought near the Pod in a planned manner, 

 strangulated to death and dead bodies of the children 

 thrown in the pond to conceal the crime. He not only 

 killed Anita but crushed her head to avoid identification. 

 Killing four children, tying the dead bodies in bundles of 

 two each and throwing them in the pond would not have 

 been possible, had the appellant not meticulously planned 

 the murders. It shows that the crime has been committed 

 in a beastly, extremely brutal, barbaric and grotesque 

 manner. It has resulted in intense and extreme 

 indignation of the community and shocked the collective 

 59

 conscience of the society. We are of the opinion that the 

 appellant is a menace to the society who cannot be 

 reformed. Lesser punishment in our opinion is fraught 

 with danger as it may expose the society to peril once 

 again at the hands of the appellant. We are of the opinion 

 that the case in hand falls in the category of the rarest of 

 the rare cases and the trial court did not err in awarding 

 the death sentence and the High Court confirming the 

 same." 

92. In Ranjeet Singh vs. State of Rajasthan (1988) 1 SCC 633, 

the entire family was murdered when they were fast asleep and this 

Court observed as under:

 "With regard to the sentence of death, there cannot be 

 two opinions. The manner in which the entire family was 

 eliminated indicates that the offence was deliberate and 

 diabolical. It was pre-determined and cold blooded. It 

 was absolutely devilish and dastardly". 

93. In Atbir vs. Govt. of NCT Delhi AIR 2010 SC 3477 this 

Court confirmed the death sentence given to the appellant who had 

committed multiple murders of members of his family, who are 

none other than step-mother, brother and sister in order to inherit 

the entire property of his father. The appellant, in consultation 

with his mother planned to eliminate the entire family of his step-

 60

mother, and with this intention went to her house, closed the doors 

and mercilessly inflicted 37 knife injuries on the vital parts of the 

victims' bodies.

94. In Surendra Koli vs. State of U.P. AIR 2011 SC 970, the 

accused was a serial killer who used to lure small girls inside a 

house, strangulate them, have sex with their bodies, cut off their 

body parts, and eat them. This Court held that no mercy could be 

shown to his horrifying and barbaric deeds, and upheld the death 

sentence.

 Present Case 

95. Having considered the law on the point and several decisions 

of this Court where death sentence was affirmed, we may now 

consider whether this case deserves the death sentence. This Court 

held in Bachan Singh vs. State of Punjab (Supra) that death 

sentence should only be given in the rarest of rare cases. In our 

opinion this is one of such cases. Burning living persons to death 

 61

is a horrible act which causes excruciating pain to the victim, and 

this could not have been unknown to the appellant. 

96. In our opinion, a person like the appellant who instead of 

doing his duty of protecting his family kills them in such a cruel 

and barbaric manner cannot be reformed or rehabilitated. The 

balance sheet is heavily against him and accordingly we uphold the 

death sentence awarded to him.

97. In the present case the accused did not act on any spur of the 

moment provocation. It is no doubt that a quarrel occurred 

between him and his wife at midnight, but the fact that he had 

brought a large quantity of petrol into his residential apartment 

shows that he had pre-planned the diabolical and gruesome murder 

in a dastardly manner. 

98. In our opinion a distinction has to be drawn between ordinary 

murders and murders which are gruesome, ghastly or horrendous. 

While life sentence should be given in the former, the latter 

 62

belongs to the category of rarest of rare cases, and hence death 

sentence should be given. 

99. This distinction has been clarified by a recent judgment of 

my learned brother Hon'ble C. K. Prasad, J. in Mohd. Mannan @ 

Abdul Mannan vs. State of Bihar (2011) 5 SCC 317 (vide paras 

23 and 24), wherein it has been observed: 

 "23. It is trite that death sentence can be inflicted only in 
 a case which comes within the category of the rarest of 
 rare cases but there is no hard-and-fast rule and 
 parameter to decide this vexed issue. This Court had the 
 occasion to consider the cases which can be termed as the 
 rarest of rare cases and although certain comprehensive 
 guidelines have been laid to adjudge this issue but no 
 hard-and-fast formula of universal application has been 
 laid down in this regard. Crimes are committed in so 
 different and distinct circumstances that it is impossible to 
 lay down comprehensive guidelines to decide this issue. 
 Nevertheless it is widely accepted that in deciding this 
 question the number of persons killed is not decisive. 

 24. Further, the crime being brutal and heinous itself does 
 not turn the scale towards the death sentence. When the 
 crime is committed in an extremely brutal, grotesque, 
 diabolical, revolting or dastardly manner so as to 
 arouse intense and extreme indignation of the community 
 and when collective conscience of the community is 
 petrified, one has to lean towards the death 
 sentence. But this is not the end. If these 
 factors are present the court has to see 
 as to whether the accused is a menace to the society and 
 would continue to be so, threatening its peaceful and 
 harmonious coexistence. The court has to further enquire 
 and believe that the accused condemned cannot be 
 reformed or rehabilitated and shall continue with the 
 criminal acts. In this way a balance sheet is to be prepared 
 while considering the imposition of penalty of death of 
 aggravating and mitigating circumstances and a just 
 balance is to be struck. So long the death sentence is 
 provided in the statute and when collective conscience of 

 63

 the community is petrified, it is expected that the holders 
 of judicial power do not stammer dehors their personal 
 opinion and inflict death penalty. These are the broad 
 guidelines which this Court had laid down for imposition of 
 the death penalty".

We fully agree with the above view as it has clarified the meaning 

of the expression `rarest of the rare cases'. To take a hypothetical 

case, supposing `A' murders `B' over a land dispute, this may be a 

case of ordinary murder deserving life sentence. However, if in 

addition to murdering `B', `A' goes to the house of `B' and wipes 

out his entire family, then this will come in the category of rarest 

of the rare cases' deserving death sentence. The expression `rarest 

of the rare cases' cannot, of course, be defined with complete 

exactitude. However, the broad guidelines in this connection have 

been explained by various decisions of this Court. As explained 

therein, the accused deserves death penalty where the murder was 

grotesque, diabolical, revolting or of a dastardly manner so as to 

arouse intense and extreme indignation of the community, and 

when the collective conscience of the community is petrified, or 

outraged. It has also to be seen whether the accused is a menace to 

society and continues to do so, threatening its peaceful and 

 64

harmonious coexistence. The Court has to further enquire and 

believe that the accused cannot be reformed or rehabilitated and 

shall continue with his criminal acts. Thus a balance sheet is to be 

prepared in considering the imposition of death penalty of the 

aggravating and mitigating circumstances, and a just balance is to 

be struck.

100. We fully agree with the above view and we are of the opinion 

that all the requisites for death penalty as noted above are satisfied 

in the present case for the reasons given above. 

Abolition of Death Sentence

101. It is only the legislature which can abolish the death penalty 

and not the courts. As long as the death penalty exists in the 

statute book it has to be imposed in some cases, otherwise it will 

tantamount to repeal of the death penalty by the judiciary. It is not 

for the judiciary to repeal or amend the law, as that is in the 

domain of the legislature vide Common Cause vs. Union of 

 65

India 2008(5) SCC 511 (vide paragraphs 25 to 27). The very fact 

that it has been held that death penalty should be given only in the 

rarest of the rare cases means that in some cases it should be given 

and not that it should never be given. As to when it has to be 

given, the broad guidelines in this connection have been laid down 

in Macchi Singh's case (supra) which has been followed in several 

decisions referred to above. This Court has also held that honour 

killing vide Bhagwan Dass vs. State (NCT) of Delhi AIR 2011 

SC 1863, fake encounter by the police vide Prakash Kadam vs. 

R.V. Gupta AIR 2011 SC 1945 and dowry death vide Satya 

Narayan Tiwari vs. State of U.P. (2010) 13 SCC 689 comes 

within the category of `rarest of rare cases'. Hired killing would 

also ordinarily come within this category.

102. In view of the foregoing, there is no merit in this appeal 

which is accordingly dismissed. 

 66

103. Before parting with this case, we would like to mention that 

we are not dealing with mercy petitions under Article 72 and 161 

of the Constitution, but are confining ourselves to the question of 

imposing death penalty on the judicial side. 

 ....................................J.

 (Markandey Katju)

 .....................................J.

 (Chandramauli Kr. Prasad)

New Delhi;September 13, 2011

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